NEWS MEDIA UPDATE · MASSACHUSETTS · Secret Courts · March 29, 2007
High court allows hearings to remain closed
March 29, 2007 · Massachusetts’ highest court on Wednesday denied a newspaper access to a type of pretrial hearing used to weigh charges against people who have not been arrested, saying the First Amendment does not guarantee the press the right to attend the proceedings.
The (North Andover, Mass.) Eagle-Tribune had argued before the state’s Supreme Judicial Court that the so-called “show cause” hearings were equivalent to the preliminary criminal proceedings that the U.S. Supreme Court said should be open to the public in 1986.
But the Massachusetts court said the show cause hearings are not akin to probable cause hearings that take place after a person has already been charged with a crime. Rather, the justices said the show cause hearings are meant to screen out minor criminal matters through a “combination of counseling, discussion, or threat of prosecution” — a process they likened to mediation.
In 2005, The Eagle-Tribune sued to gain access to a hearing for the owner of a nightclub where a 20-year-old woman was stabbed after allegedly being served alcohol.
Because few people know that show cause hearings exist, influential people have used the proceedings to dispose of criminal disputes in secret, said Peter Caruso, an attorney who represented the newspaper.
“This will allow people of influence and affluence to argue their differences behind closed doors, which will further erode the public’s confidence in judicial system,” Caruso said.
Though most prosecutions start with an arrest, Massachusetts law also allows police officers or private citizens to file an “application for issuance of criminal process” against a person who has not been charged.
Those accused can then defend themselves in show cause hearings before clerk-magistrates who determine whether a criminal complaint should be issued. Clerk-magistrates are not judges and may not be attorneys.
If charges are issued, the court file becomes public at arraignment. But if a clerk-magistrate decides against charges, the incident never goes on a person’s record.
Reporters frequently want to sit in on the hearings because they are often used in high-profile cases, said Robert Ambrogi, an attorney and executive director of the Massachusetts Newspaper Publishers Association, which filed a friend-of-the-court-brief in the case.
“We were hoping for a very different outcome,” Ambrogi said.
Though the court said the hearings are presumed to be closed to the public, it said there might be instances where they should be open — especially in cases with extensive publicity.
Justice Judith Cowin wrote for the court that clerk-magistrates “should consider not only the potential drawbacks of public access, but its considerable benefits” when deciding whether to close a hearing.
That could provide a tool for the press to challenge closure in the future, Caruso said.
(Eagle-Tribune Publ’g Co. v. Clerk-Magistrate of the Lawrence Division of the District Court Dep’t, Media Counsel: Peter J. Caruso, Caruso & Caruso, LLP, Andover, Mass.) — RG